Kimberly Rene Goode v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00465-CR
KIMBERLY RENE GOODE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Kimberly Rene Goode appeals her conviction for state-jail-felony
theft, contending in two related points that the evidence is insufficient to support
the trial court’s finding that she had twice been previously convicted of theft and
that the trial court erred by overruling her objection to the admission of the
State’s first four exhibits. We affirm.
Background Facts
1
See Tex. R. App. P. 47.4.
A Tarrant County grand jury indicted appellant for committing state-jail-
felony theft. The indictment alleged that appellant had stolen twenty-three items
of merchandise valued collectively at less than $1,500 and that she had been
convicted of theft in July 2002 and again in September 2005.2 Appellant waived
her right to a jury trial and pled not guilty.
At the bench trial, the trial court admitted two exhibits that contained
papers from Tarrant County court files relating to theft convictions attributable to
a person with appellant’s full name.3 Although thumb prints from the prior
convictions were too illegible to associate them with appellant, the files related to
both convictions had a county identification number (CID)—a unique,
nonreusable number that the Tarrant County jail gives to a person upon being
booked there—that matched appellant’s CID.4 In addition, the exhibits contained
a defendant’s date of birth—November 25, 1981—that matched appellant’s birth
date.
2
The evidence at trial established the value of the twenty-three items at
$129.28.
3
The trial court admitted the exhibits as certified copies of public records
under rule of evidence 902(4). See Tex. R. Evid. 902(4). The exhibits contained
docket sheets, judgments, plea paperwork, and other documents that had been
filed in the previous theft cases.
4
Tarrant County Sheriff’s Office Deputy John Pauley took appellant’s
fingerprints on the afternoon that the trial began. Those fingerprints matched
fingerprints on a print card that is maintained by the sheriff’s office and that
contains appellant’s CID. Thus, the State established appellant’s connection to a
particular CID.
2
The trial court used the documents related to the prior theft convictions to
convict appellant of state-jail-felony theft. After hearing brief testimony during the
punishment phase of the trial, the court sentenced appellant to eighteen months’
confinement. Appellant brought this appeal.
Sufficiency of the Evidence Regarding Appellant’s Prior Crimes
In her two points, appellant argues that the theft convictions introduced as
exhibits at trial do ―not support the jurisdictional requirement for this case to be
prosecuted as a state jail felony because they were not affirmatively linked to
[a]ppellant.‖ Appellant presents her points together, and we will examine them
together.
A person commits theft by unlawfully appropriating property with intent to
deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a) (West
2011). Theft is a state jail felony if the value of the property stolen is less than
$1,500 and the defendant has been previously convicted two or more times of
theft. Id. § 31.03(e)(4)(D). ―Elevating a misdemeanor theft to a felony theft by
use of previous theft convictions . . . creates a new offense and vests the district
court with jurisdiction. Previous theft convictions that elevate misdemeanors to
felonies are jurisdictional elements of the offense alleged.‖ Moore v. State, 916
S.W.2d 537, 539 (Tex. App.—Dallas 1995, no pet.) (citation omitted).
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). Where proof of a prior conviction is a
jurisdictional element, the fact of the prior conviction, including the identity of the
accused, must be proven beyond a reasonable doubt. See Zimmer v. State, 989
S.W.2d 48, 50 (Tex. App.—San Antonio 1998, pet. ref’d) (applying the Jackson
standard to a sufficiency review of prior offenses that were jurisdictional elements
of the crime at issue).
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists,
and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim.
App. 1986) (―It is incumbent on the State to go forward and show by independent
evidence that the defendant is the person so previously convicted.‖); see also
Timberlake v. State, 711 S.W.2d 50, 52 (Tex. Crim. App. 1986) (―[T]he facts of
each case must contain reliable evidence showing that the defendant had been
previously convicted of the offense for which evidence is offered.‖). These two
elements may be established by certified copies of a judgment and a sentence,
including fingerprints, supported by expert testimony identifying them as identical
with known prints of the defendant. See Vessels v. State, 432 S.W.2d 108, 117
(Tex. Crim. App. 1968) (op. on reh’g). There is no required ―mode of proof,‖
however, for the two elements; the State may prove them in a number of different
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ways. Flowers, 220 S.W.3d at 921–22 (―Just as there is more than one way to
skin a cat, there is more than one way to prove a prior conviction.‖). In proving
the elements, the State may use ―[a]ny type of evidence, documentary or
testimonial.‖ Id. at 922; see Human v. State, 749 S.W.2d 832, 836 (Tex. Crim.
App. 1988). Finally, the factfinder looks at the totality of the admitted evidence to
determine whether there was a previous conviction and whether the defendant
was the person convicted. Flowers, 220 S.W.3d at 923; see Ortiz v. State, No.
02-07-00397-CR, 2008 WL 4602243, at *2 (Tex. App.—Fort Worth Oct. 16, 2008,
pet. ref’d) (mem. op., not designated for publication).
Appellant cites Cruz v. State, No. 08-06-00294-CR, 2009 WL 475784 (Tex.
App.—El Paso Feb. 26, 2009, no pet.), to challenge the sufficiency of the linked
CIDs and the shared birth dates between appellant and the defendant from the
two prior judgments submitted by the State. But Cruz addressed the sufficiency
of uncorroborated testimony regarding whether fingerprints from a booking
packet, which was not in evidence, matched the defendant’s fingerprints. Id. at
*2. Unlike Cruz, the State in this case relies on more than uncorroborated
testimony; the State submitted into evidence documents associated with the prior
convictions that contained a unique CID matching appellant’s CID. Appellant’s
reliance on Zimmer is similarly misplaced. See 989 S.W.2d at 52 (―We are left
only with testimony that the fingerprint on the back of a booking slip, which is not
in evidence, matches that of the defendant . . . .‖) (emphasis added).
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Given that appellant’s unique, nonrecycled CID appeared in relation to two
Tarrant County convictions concerning a defendant with appellant’s full name
and birth date, we hold that a rational trier of fact could have found the evidence
sufficient to link appellant to the two prior judgments submitted by the State.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
Moreover, we hold that the trial court did not err by overruling appellant’s
objection to the admission of the State’s exhibits based on the grounds that the
State failed to affirmatively link appellant to the two prior judgments. We overrule
both of appellant’s points.
Conclusion
Having overruled both of appellant’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 29, 2011
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